#### William D. Bailey, Resp’t, *v.*The Rome, Watertown & Ogdensburgh Railroad Co., App’lt.

*(Supreme Court, General Term, Fourth Department,*

*Filed February 15, 1890.)*

1. Master and servant—Negligence.

Plaintiff, a brakeman in defendant’s employ, was thrown from the car by the brake pulling out while he was setting it. It was afterwards found that the pin which held it in place was missing, but no explanation of its *756absence was given. *Eeld,*that the evidence was insufficient to justify a submission to the jury.

2. Same—Evidence.

Opinions of witnesses as to the capacity of a brakeman to displace the brake rod in case the pin remained therein, or as to whether the pin or ring could be lost on the road in the absence of use of the brake or any accident is inadmissible. Neither of these subjects embrace questions of science or skill.

Appeal from a judgment entered in Oneida county upon a verdict taken at a circuit held in that county in favor of the plaintiff for $8,000 *damages;*and also an appeal from an order denying a motion for a new trial made upon the minutes at the circuit.

On the 3rd day of August, 1886, the plaintiff was employed by the defendant in the capacity of brakeman. While in the discharge of his duties as brakeman on train No. 60, at De Kalb, he received the injuries for which he brings this action.

In describing the manner in which he received the injuries he testified as follows, viz.: “It was a brake eighteen inches high, perhaps, from the floor of the car up to the top of the car brake where you take hold. I set it up as tight as I could get it with the muscles of my arms. I gave the wheel but one or two turns, probably a couple of twists, then I swayed on the brake with the rest of my body. Immediately when I did that the brake came up with me perfectly easy and I tipped off Head first down between the cars. The brake staff tipped over and I went under the train head first. I pitched right off at the right side at the end of the two cars at the side, and struck the platform of the station that runs along side of the cars, and I struck that with my leg and rolled back under the wheels and I was dragged perhaps one hundred or one hundred and fifty feet. My coat was pitched' over my head so I could not see anything. I didn’t know what minute they might cut my head off. The first thing I knew somebody grabbed hold of me and pulled me out. * * * This brake has a rod which goes down through the car; and in the bottom of the car is a stirrup of flat iron through which the brake goes in a hole. In the rod under the stirrup is a hole, in which goes a pin or ring to hold rod from lifting out of that stirrup iron. On top of rod is a wheel with spokes in and a nut on it. The wheel is for the purpose of taking hold to set the brake. From the bottom of the car to the stirrup is a space for the chain attached to the brake which works on the rod. The chain is inside of the stirrup. They have two different kinds of pins, one is the size of a lead pencil, split at the end, drawn through the hole, and bent back so it can’t pull out Both ends are bent back. The other kind is a round ring of iron about the size of a lead pencil, which is bent round and lapped like the. weld of a piece of iron. When I took hold of brake the^e was nothing from where I stood to indicate there was anything wrong-about it It appeared all right as I set it until I swayed on it I could not see the bottom of the brake staff from where I stood. That is under the car. There is no difficulty in seeing it from the ground if one is examining the brakes. The brake rod was about *757an inch and a quarter at the lower end, and the hole through which the pin or ring goes is about the size of a lead pencil, so that the ring in there twists.”

Plaintiff was asked the following question, viz.: “ If the key or ring was in the brake staff at the time you commenced using and operating it, could you have pulled it out or caused it to fall out with the force that you applied ? ” To this question the counsel for the defendant objected that “this is not a question for an expert.” The objection was overruled and an exception taken. The witness answered: “It could not”

"When the witness, Sweeny, was upon the stand he was asked, viz.: “Assuming that such a pin or key as you have described was in the brake at the time it was used, in your judgment, could any force that a bralceman could have applied in using a brake have caused that key or pin to come out or fall out? ” Defendant’s counsel objected to the question as “ incompetent and immaterial, and not a question for an expert, and he cannot possibly know the force which any bralceman could use.” Thereupon the court made a ruling sustaining the objection. Some discussion took place and the court intimated its intention to allow the question, and the defendant’s counsel further stated, as a ground of objection: “ That it was not a question for an expert and not embracing the facts of the case, and a supposition.” Thereupon the court overruled the objections and the defendant’s counsel took an exception, and the following question was put, to wit: “Q. Assuming that such a pin, key or ring, such as you have described, was in the brake standard at the time it was operated or commenced to be operated by Bailey, in your judgment, could he, by the use of such brake, in braking, have broken or pulled out, or caused to come out, the ring or pin, without injuring the brake standard or injuring the stirrup ?” The objections were again repeated and overruled and an exception taken, and the witness answered, viz.: “ He could not.” Thereupon another question was propounded, viz.: “ Q. In your judgment could he by any use of the brake with his hands have broken or pulled that pin out? ” This was objected to and an exception taken, and the witness answered: “No, sir.”

The plaintiff was recalled as a witness and the following question propounded to him: “ Q. Assuming that the key, or ring, or pin, made of iron, as you have described in your direct examination, was properly in the brake standard when the train left Nor-wood, and that no accident occurred to the train on the trip from Norwood and the brake was not used during that time, in your judgment could the ring or pin have worked out or fallen out on the trip ? ” This question was objected to by defendant on the ground that it was “ incompetent and immaterial, and not a question for an expert, and that there was no proof in the case as to the character of the pin which was in the brake standard.” The objections were overruled and an exception taken, and the witness answered: “No, sir.” A motion was made for a nonsuit and denied, and an exception taken.

A. *M.*Beardsley, for app’lt; *Scripture &*Backus, for resp’t.

*758Hardin, P. J.

When this case was before us on a former appeal, 49 Hun, 377; 19 N. Y. State Rep., .656, we stated the principles of law applicable to the case with numerous citations of authority upholding them, and reached the conclusion “ that the evidence in this case was insufficient to justify the submission to the jury of the question of the defendant’s negligence, and that the court erred in refusing to grant the defendant’s motion for a non-suit.” We adhere to the principles of law found in the opinion of the court delivered on that occasion. We think the learned trial judge fell into an error in receiving the testimony of witnesses upon the subject of the capacity of a brakeman to displace the rod in case the pin had remained therein; and also upon the subject of whether or not a “ pin or ring could be lost out on the road between Norwood and De Kalb in the absence of the use of the brake and in the absence of any accident." We think neither of the subjects of the opinions received embrace questions of science or skill. *Teall*v. *Barton,*40 Barb., 137.

We think .the language of Miller, J., in *Hart*v. *Hudson River Bridge Co.,*84 N. Y., 60, is applicable to the rulings made. He there says: *“*It was entirely a matter of opinion, not properly within the rule which allows the testimony of experts, and in regard to which one individual could form a judgment as well as another, both having equal knowledge of the circumstances. It did not relate to anything connected with the safety or the strength of the construction, but to a question of fact, which properly belonged to the jury to pass upon, and which could not be disposed of upon the opinions of witnesses.”

In *Ferguson*v. *Hubbell,*97 N. Y., 513, the subject of the oj)inion of witnesses is considered, and it is there said: “Where the facts can be placed before a jury, and they are of such a nature that jurors generally are just as competent to form opinions in reference to them and draw inferences from them as witnesses, then there is no occasion to resort to expert or opinion evidence. To require the exclusion of such evidence, it is not needed'that the jurors should be able to see the facts as they appear to eye witnesses or to be as capable to draw conclusions from them as some witnesses might be, but it is sufficient that the facts can be 'presented in such a manner that jurors of ordinary intelligence and experience in the affairs of life can appreciate them, can base intelligent judgments upon them and comprehend them sufficiently for the ordinary administration of justice.”

We think the subjects of inquiry were not such as to require or authorize the opinion of the witnesses, and that it was error to receive such opinions.

In *Vosburgh*v. *L. S. & M. S. R. R.*Co., 14 W. Dig., 514, where the construction of the Ashtabula bridge was the subject of inquiry, I prepared an opinion which upheld the ruling allowing an engineer to state that the bridge fell because of “ the bad design of the work as built, and also the defective manner of constructing the work.” That case was afterwards affirmed by the court of appeals, 94 N. Y., 374.

We think the case is distinguishable from the one before us, *759and nothing is stated in either of the opinions, either the opinion delivered in this court or in the court of appeals, tending to support the rulings in the case in hand.

In *Schwander*v. Birge, 46 Hun, 66; 10 N. Y. State Rep., 802, the question was whether the means of egress from a building “ were reasonably sufficient, and all that due care required of the defendant to provide for his employees;” and it was held that the opinion of witnesses upon that subject could not properly be received. The question was one of fact for the jury, and the decision is put upon the authority of *Ferguson*v. *Hubbell, supra.*

The evidence upon the subject of the alleged negligence of the defendant is so meagre that we do not feel warranted in saying that the evidence which was received of the opinions of witnesses was not prejudicial to the defendant.

Judgment and order reversed on the exceptions and anew trial ordered, with costs to abide the event.

Martin and Merwin, JJ., concur.